4; Cal. Code Regs. tit. 4, §§15718-25. 21 U.S.C. § 343(q); 21 C.F.R. 101.9(c). 21 U.S.C. §343(a). 21 C.F.R. 101.13(i).

NotesSee Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301, et seq.), the Public Health Service Act (42 U.S.C. 201, et seq.), and the Fair Packaging and Labeling Act (15 U.S.C. § 1451, et seq.)See Federal Meat Inspection Act (FMIA; 21 U.S.C. § 601 et. seq); Poultry Products Inspection Act (PPIA; 21 U.S.C. § 451,et seq.)21 U.S.C. §§ 601(n)(1) and 453(h)(1); 21 U.S.C. § 343(a).21 U.S.C. §§ 601(n)(2) and 453(h)(2); 21 U.S.C. § 343(b).

he Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.212(1).The Supremacy Clause of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI cl. 2. The Supremacy Clause thus empowers Congress to preempt state laws. Arizona v. United States, 132 S.Ct. 2492, 2500 (2012). Among others, one way in which Congress may preempt state laws is through express preemption. See Shuford v. Fidelity Nat. Property & Cas. Ins. Co., 508 F.3d 1337, 1344 (11th Cir. 2007). Express preemption occurs “when Congress has manifested its intent to preempt state law explicitly in the language of the statute.” Id.The FDCA generally prohibits the “adulteration or misbranding of any food . . . in interstate commerce.” 21 U.S.C. § 331(b). The FDCA considers a food product misbranded if its labeling is “false or misleading in any particular manner.” 21 U.S.C. § 343(a). Congress amended the FDCA in 1990 to “create uniform national standards regarding the labeling of food.” Bruton v. Gerber Products Co., 961 F. Supp. 2d 1062, 1079 (N.D. Cal. 2013). As part of those amendments, Congress explicitly preempted any state labeling requirements that are not identical to federal labeling requirements. Henry, 2016 WL 1589900 at *6; 21 U.S.C. § 341-1(a) (“no State or political subdivision of a State may directly or indirectly establish . . . any requirement for the labeling of food of the type required in [the enumerated sections of the FDCA, including § 343(i)(2)] that is not identical to the requirement of such section”). Interpreting this preemption clause, courts have consistently found that the FDCA preempts state statute- and common-law-based claims to the extent that they would impose liability for conduct expressly permitted by the FDCA. E.g., Henry, 2016 WL 1589900 at *7 (state-law unfair trade practices claim preempted); Turk v. Gen. Mills, Inc., 662

Labeling Issues The Order does not alter PHO or trans-fat labeling. Two sections of the Nutrition Labeling and Education Act (NLEA), 21 U.S.C. §§ 343(q) and (r), directly apply to trans-fat labeling. Section 343(q) enumerates the requirements for the labeling of nutrition information that typically appears in the Nutrition Facts panel. 21 U.S.C. § 343(q).

org/responsibility/advertising-marketing-code/lxii Id.lxiii Id.lxiv 21 C.F.R. § 101.9; 21 U.S.C. § 343(q).lxv 21 C.F.R. § 101.36 ; 21 U.S.C. § 343(s).

eged a blended version of the product (like the defendant’s product) cannot be labeled “glucosamine sulfate.”The plaintiffs were wrong, and the district court and the Ninth Circuit both ruled that federal regulation of dietary supplements preempted their state-law claims. How did the courts get there? The starting point is the federal Food Drug & Cosmetics Act, which expressly preempts any state-law requirement for the labeling of food that is not identical to federal requirements. Id. at 1016. A private plaintiff therefore can bring state-law claims only if the state law imposes requirements that are identical to those contained in the FDCA. Id.That was the plaintiffs’ hook in Hollins. They argued that they were seeking to enforce state-law requirements that were identical to federal requirements—namely, that a food is misbranded (1) if it is offered for sale under the name of another food or (2) if its label does not bear the FDA-required nutritional information. Id. at 1014 (citing 21 U.S.C. §§ 343(b), 343(q)). We understand those rules. Rockfish should not be held out as red snapper, and maple-flavored corn syrup should not be called maple syrup.The problem with the plaintiffs’ glucosamine claims was that FDA regulations clearly allowed the defendant to label its product “glucosamine sulfate.” The FDA has promulgated regulations governing the labeling for dietary supplements; and for many ingredients, the FDA has established specific reference values. However, where the FDA has not established reference values, such dietary ingredients “shall be declared by their common or usual name.” Id. at 1014-15.This next part is really important. An ingredient’s “common or usual name” is determined by specified testing protocols: “Official Methods of Analysis” of the AOAC International or, if no AOAC method is available, “by other reliable and appropriate analytical procedures.” Id. at 1015. Finally, alternate testing methods must be validated—often known as “compendial test methods.” Id.Why

Manufacturers can satisfy the act’s labeling requirements in one of two ways:1) including a statement “printed immediately after or adjacent to the list of ingredients” that includes the word “contains” followed by “the common or usual name of the major food allergen.” [21 U.S.C. § 343(w)(1)(A)].2) listing the major food allergen as an ingredient which, with certain exceptions, must be “followed in parentheses by the name of the food source from which the major food allergen is derived.”

References1 Voluntary Disclosure of Sesame as an Allergen: Guidance for Industry (November 2020) available at https://www.fda.gov/media/143521/download; See also, Voluntary Disclosure of Sesame as Allergen: Draft Guidance for Industry (10 November 2020) (to be published in the Federal Register 12 November 2020) available at https://public-inspection.federalregister.gov/2020-24727.pdf.2 21 U.S.C. § 321(qq)(1).3 21 U.S.C. § 343(i); 21 CFR 101.4.4 Citizen Petition, Requests that the FDA require sesame based ingredients to be listed by name (sesame) in the ingredient lists of all foods, Docket No. FDA-2014-P-2035, available at https://beta.regulations.gov/docket/FDA-2014-P-2035.5 83 Fed. Reg. 54594 (30 October 2018).6 21 U.S.C. § 343 note.

The FDCA only requires that foods imitating other foods bear a label with the word “imitation” and “immediately thereafter, the name of the food imitated.” 21 U.S.C. § 343(c); 21 C.F.R. § 101.3(e).

Instead, she contends that it does not matter, because “the law was settled long ago by the relevant statutes and regulations.” The FDA’s 2016 Final Guidance simply clarified FDA’s position that the use of ECJ instead of sugar is false and misleading under 21 U.S.C. §343(a)(1) and its accompanying regulations.[1] Therefore, Plaintiff argues that Jelly Belly’s use of the term ECJ instead of sugar on Sports Beans’ label violates these regulations and §343(a)(1).